It was nice to hear Secretary of State Hillary Rodham Clinton say on October 26, "I strongly disagree" with Islamic countries seeking to censor free speech worldwide by making defamation of religion a crime under international law.
But watch what the Obama administration does, not just what it says. I’m not talking about its attacks on Fox News. I’m talking about a little-publicized October 2 resolution in which Clinton’s own State Department joined Islamic nations in adopting language all-too-friendly to censoring speech that some religions and races find offensive.
The ambiguously worded United Nations Human Rights Council resolution could plausibly be read as encouraging or even obliging the U.S. to make it a crime to engage in hate speech, or, perhaps, in mere "negative racial and religious stereotyping." This despite decades of First Amendment case law protecting such speech.
To be sure, the provisions to which I refer were a compromise, stopping short of the flat ban on defamation of religion sought by Islamic nations, and they could also be construed more narrowly and innocuously. It all depends on who does the construing.
Is it "negative stereotyping" to say that the world’s most dangerous terrorists are Islamists, for example? Many would say yes.
I sketch below how the resolution could be construed to require prosecuting some offensive speech and how it could be used in the long run to change the meaning of our Constitution and laws, based on doctrines developed by legal academics including Obama appointee Harold Koh, the State Department’s top lawyer.
Now and then events converge to remind us of how often plaintiffs’ lawyers pervert our lawsuit industry for personal and political gain, under the indulgent eyes of judges, without rectifying any injustices, at the expense of the rest of us.
We have recently witnessed the spectacle of three of the nation’s richest and most famous plaintiffs’ lawyers heading to federal prison for various criminal frauds. More on them later. First, let’s consider an especially egregious case that the Supreme Court allowed on May 12, for lack of a quorum, to move ahead in lower federal courts. These consolidated lawsuits, which are seeking more than $400 billion from companies that did business in South Africa during apartheid, score high on what I call Taylor’s Index of Completely Worthless Lawsuit Indicators:
• The lawsuits will do victims of wrongdoing little or no good.
• They will penalize no human being who has done anything wrong.
• They will deter more conduct that is beneficial than harmful.
• The legal costs and any damages will come at the expense of the general public.
• The lawsuits therefore serve no purpose at all but to enrich lawyers and provide ideological power trips for some judges as well as lawyers.
A weakly reasoned federal Appeals Court decision in the apartheid case has the additional defects of thumbing its nose at the Supreme Court and insulting the current, democratically elected government of South Africa, which is led by victims of apartheid.
American Isuzu Motors v. Ntsebeza is a class action purporting to represent all of the more than 20 million black South Africans who were held down by the brutal apartheid regime between 1948 and 1994. The claimed $400 billion would come from more than 50 of the big American and multinational companies that usually end up in the dock when plaintiffs’ attorneys are looking for deep pockets to pick.
The battle over President Bush’s warrantless eavesdropping program has faded as a political issue. But it serves to illustrate a legal principle that should be — but has not been — a point of consensus in the broader debate about presidential war powers.
The principle is that while the president should have power during an extraordinary emergency to temporarily disregard outdated laws that may impede his ability to protect American lives, that power should lapse once he has had time to seek appropriate congressional changes in the laws.
I call this the emergency-powers principle. Its logic has been overlooked by many Bush critics as well as supporters in assuming their respective positions: that the eavesdropping program either was illegal from the outset (as critics claim), or has always been legal and will always be immune to congressional regulation (as defenders claim).
The better view is that Bush was right to start the eavesdropping program (assuming that the still-secret details show the need for it) during the post-9/11 emergency — but was wrong to keep its existence secret and to resist congressional regulation.
Although various laws give the president extraordinary powers during emergencies, no general emergency-powers principle is spelled out in the Constitution or in any judicial decision that I can find. But the principle is implicit in the Framers’ division of powers between Congress and the president.
It is also compelled by common sense. In the days and weeks after the 9/11 attacks, the administration had reason to fear that more attacks might be imminent. It also had cause for concern that the Foreign Intelligence Surveillance Act — badly outdated by new communications technologies and by the vastly enhanced terrorist threat — might make it unduly difficult to find the plotters.
"Not on my watch," wrote President Bush in early September 2001, in the margin of a report on President Clinton’s limp response to the 1994 genocide that took 800,000 lives in Rwanda.
President Bush claims that his tough, confrontational approach to the bad guys of the world has made America safer. But on his watch, the world’s most dangerous regime — North Korea — has openly declared that it is building nuclear bombs as fast as it can. It may already (experts speculate) have as many as a dozen, and it shows signs of preparing its first nuclear bomb test. Nukes in the hands of this paranoid, impoverished regime — which is also building long-range missiles and seems quite capable of selling nukes to Al Qaeda — represent a vastly greater threat to American cities than Saddam Hussein ever did.
It’s unclear whether any president could have prevented this, short of war. But it’s hard to imagine anyone doing much worse than Bush has done. Looking to the future, would John Kerry do better? The answer may turn on a blood-curdling choice: Would it be better to pin all our hopes on peaceful negotiations that seem less than likely to stop North Korea from building a vast nuclear arsenal? Or should we threaten — and, if necessary, launch — pre-emptive bombing attacks that could lead to another all-out Korean war and even the nuking of South Korea and Japan?
Much of what goes by the name "international law" in academic and European circles these days deserves little respect from the United States, because it consists of rules made by foreign judges and professors that this sovereign nation has never adopted as binding. Many internationalists claim, for example, that firing missiles at terrorist leaders such as Osama bin Laden, as President Clinton once did, and aggressively interrogating captured terrorists, as the Bush administration is doing, violate international law. Bosh.
Practitioners of the loosey-goosey approach to constitutional interpretation that maddens original-meaning conservatives such as Supreme Court Justice Antonin Scalia are increasingly looking to a virtually unlimited source of new raw material: foreign law, including international human-rights conventions, Zimbabwe Supreme Court rulings, and whatever else might come in handy. Indeed, two of the more internationalist justices, Sandra Day O’Connor and Ruth Bader Ginsburg, have confidently predicted that (in O’Connor’s words) the justices "will find ourselves looking more frequently to the decisions of other constitutional courts."
Three years ago, my friend Don Kendall employed 2,100 Americans in gleaming, highly automated plants in Massachusetts, New York, North Carolina, South Carolina, and Vermont, making high-end computer servers, mass-storage devices, telecommunications routers, and hundreds of other products. Now, those same plants employ just 1,100 workers. Most of the 1,000 who have been laid off have had to take retail, tourism, or other service-sector jobs paying about half of what they made before — if they have found jobs at all.
The Bush administration is in the midst of making momentous decisions about how to deal with the United Nations in the post-Saddam era. Those decisions will critically affect our chances of winning the peace in Iraq and of proving our claims that Saddam had an arsenal of banned weapons-claims on which President Bush has staked his credibility. And they will set the direction of America’s relations with the rest of the world for years to come.
International rules lose their validity when widely flouted or when superseded by new strategic realities. The U.N. Charter’s curbs on the use of military force had suffered both fates long before George W. Bush became president. America’s pattern of acting without Security Council authorization-justifiably, in at least some cases-dates back at least to the 1962 Cuban missile blockade and has marked U.S. military activities in Vietnam, Lebanon, Grenada, Panama, and Nicaragua.